A male lawyer is taking a deposition; a woman is defending. During the deposition, the man repeatedly makes sexist comments to opposing counsel, such as “I don’t have to talk to you, little lady” and “be quiet, little girl.”1 A lawyer represents the husband in a divorce action, and argues that the children are in danger because the wife had been seen around town in the presence of “a black male” or “the black guy.”2 At a deposition the lawyer representing the defendant said to his opposing counsel, a woman, “I don’t have a problem with you, babe,” and when the woman expressed surprise at the word babe, responded “at least I didn’t call you bimbo.”3

Incidents such as these finally persuaded the ABA House of Delegates, after two decades of discussion and debate, to adopt a rule of professional conduct prohibiting bias, discrimination, and harassment in the practice of law. Model Rule 8.4(g) now provides that a lawyer is subject to discipline if he or she “engage[s] in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” In a recent article in the Georgetown Journal of Legal Ethics, Stephen Gillers recounts the story of the controversy over proposed anti-bias rules at the ABA and state levels, and also provides a guide to applying the new rule.

Much of Gillers’s article is dedicated to a detailed legislative history of the rule, which will be quite helpful in applying Rule 8.4(g) to those cases that are sure to arise. For example, previous versions of the rule had been limited to conduct that is prejudicial to the administration of justice. The omission of that qualifying language now suggests that the coverage of the rule is not limited to conduct that takes places before a tribunal. (P. 214.) Drafting history therefore suggests a broad interpretation of the scope of the rule. Similarly, one might ask whether the language “harassment or discrimination” is limited to that conduct that would constitute actionable discrimination under civil rights statutes. Such a limitation would impose a significant restriction, as the Supreme Court has held that a hostile work environment claim under Title VII must be objectively hostile or abusive, that harassment must be severe or pervasive, and that isolated incidents or offhand remarks of a sexual nature will not give rise to liability.4Comment [3] to the revised rule states that “[t]he substantive law of antidiscrimination and anti-harassment statutes may guide the application of paragraph (g)” (emphasis added). It may still be an open question whether a stray comment or a single incident not rising to the level of “severity” for Title VII purposes will suffice for discipline under Rule 8.4(g). The final version of the rule now also includes a mens rea requirement (“knows or reasonably should know”) to avoid the concern that a lawyer may be strictly liable for discipline for conduct that inadvertently manifests bias or prejudice. As Gillers notes, however, it’s hard to imagine a case in which a lawyer would intentionally act or speak in a way that manifests bias or prejudice without knowing it would have this effect. (Pp. 218-19.)

Some critics of the rule worry that it will be interpreted to prohibit words or conduct that subjectively offend hyper-sensitive people, or which take the unpopular side of a social or political controversy. In comments written for the Heritage Foundation, for instance, the late legal ethics scholar Ron Rotunda offers the hypothetical of a bar association meeting addressing excessive violence by law enforcement officers. One lawyer says “black lives matter,” to which another lawyer responds, “blue lives matter.” Rotunda argues that, while a grievance committee would be unlikely to actually impose discipline on the second lawyer, that possibility is not foreclosed by the text of Rule 8.4(g); moreover, even if discipline were unlikely, the rule will have a chilling effect on the expression of disfavored viewpoints.5 Concerns about chilling protected speech underlie the objections of state attorneys general in Tennessee and Texas, and the Montana legislature, urging their state courts not to adopt the new ABA anti-bias rule.

Gillers appreciates but ultimately rejects these arguments. One of the claims in his paper is the Rule 8.4(g) is a rule of professional conduct, not a speech code aimed at unpopular political views. (Pp. 222-23.) Many provisions of the Model Rules directly regulate lawyers’ speech: Lawyers may not reveal protected confidential information,6 make a frivolous argument,7 knowingly make a false statement of fact or law to a tribunal,8 allude to a matter not supported by admissible evidence,9 communicate ex parte with judges or jurors,10 or communicate with non-clients known to be represented by counsel in the matter.11 No one—and I mean no one—believes these rules raise serious First Amendment issues. So what would be the problem with a rule subjecting a lawyer to discipline for calling opposing counsel “little girl” in a deposition? Moreover, the rule provides that it “does not preclude legitimate advice or advocacy consistent with these Rules,” so if it were necessary to argue, for example, that a cake decorator had a protected religious-liberty right not to sell a wedding cake to a same-sex couple, the lawyer would not be subject to discipline under the rule for manifesting bias on the basis of sexual orientation.

There are a couple of issues with Rule 8.4(g) that seem difficult to me. Gillers addresses them, but perhaps has not fully answered critics of the rule. Interestingly, one critique comes from the political left, and the other from the right. From the left, one may wonder whether it would be possible for a lawyer to engage in what might be called remedially classification-sensitive client selection without violating the anti-discrimination provision of the rule. Gillers discusses the well-known (but anomalous) case in which a lawyer was sanctioned by a state anti-discrimination agency for limiting her matrimonial practice to women. (Pp. 227-29.) Comment [5] provides: “A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations in accordance with these Rules.” But women as a group may not be underserved in divorce cases—the lawyer simply wanted to dedicate her professional energies to helping women, not men. Rule 8.4(g) may reach the same result as the state anti-discrimination agency in that case.

The critique from the right is couched in terms of religious freedom. Gillers cites a comment from the Conference of Catholic Bishops questioning whether a lawyer could, for religious reasons, refuse to prepare a prenuptial agreement for a same-sex couple. He concludes that the lawyer would be subject to discipline under Rule 8.4(g) for refusing to serve these clients. (Pp. 231-32.) An interesting question is whether a lawyer could refuse to prepare a prenuptial agreement without giving any reason. If that would be permissible, then it suggests that the religious-freedom argument has some bite. But a recent ABA ethics opinion suggests that it would be permissible for a lawyer to opt out of preparing prenuptial agreements altogether.12 The opinion addressed the issue of whether a judge would be subject to discipline under the anti-discrimination provisions of the Model Code of Judicial Conduct for refusing to perform same-sex marriages. The ethics committee concluded that if a judge has discretion in a jurisdiction not to perform marriages, then an across-the-board refusal to perform any marriages, including same-sex marriages, is permissible. A judge cannot pick and choose, however, without running afoul of the Code. By analogy, a lawyer could refuse to prepare all prenuptial agreements, but not those for same-sex couples. This application does appear to go beyond the pure regulation of conduct and touch on matters of conscience, as the critics of the rule fear.

Of more theoretical interest, Gillers gives short shrift to the argument that the lawyer-client relationship is a fiduciary one, requiring significant trust and the lawyer’s professional devotion. He gets close to advocating for a cab-rank rule, in which lawyers would be obligated to accept representation in any case in which they were competent and there was no conflict of interest: “[T]here is a supervening value in having a system of laws where no person can be denied representation by anyone licensed and competent to provide it, and who does provide it to others, because of the person’s membership in one of the protected groups.” (P. 233.) If this were the upshot of Rule 8.4(g), it would still be a rule of professional conduct and not a speech code, but one with sweeping impact on the American legal profession. Moving toward a cab-rank rule avoids the complication noted above, in which viewpoint-neutral refusals to serve particular clients or perform certain services are permissible, but a lawyer may not allocate her services in a way that discriminates on the basis of protected classifications. In doing so, however, this conduct rule would to some extent under-value the affective qualities that are traditionally invoked by language like “zealous” advocacy and “wholehearted” devotion.

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